No criminal sanctions in IPR enforcement directive

There will be no criminal sanctions in the proposed European directive on
the enforcement of intellectual property rights after all. In the previous
edition of EDRI-gram there was a report about an amendment of MEP Mercedes
Echerer (Greens, Austria) on Article 20 that would re-introduce sanctions
in criminal law, even for private and relatively small-scale infringements.

As it turned out, Mrs. Echerer later withdrew this amendement and replaced
it with a much much milder one, deleting the criminal law sanctions and
calling merely for ‘appropriate sanctions’. The secretariat of the Legal
Affairs Committee (JURI) of the European Parliament could not keep up with
the different amendments from the Austrian MEP, and put an old version on
the voting list. Unknowingly, most MEPs voted in favour of the mild regime.
It seems that even Mrs. Echerer herself was uncertain which of her
amendments had gotten adopted.

The amendment may, however, still be challenged in the Plenary where,
according to the present schedule, the report will be voted between 9 and
11 February. (There is also a small chance that it will appear on the
earlier agenda of 28 and 29 January.) If the milder version is not
accepted, the version contained in the Commission Draft – including
criminal sanctions – will get adopted.

If this should happen, the criminal sanctions might be deleted by the
Council, who may with some justification claim that criminal law is a
so-called Third Pillar issue that must not be decided in the co-decision
procedure. It seems that the Council and the Commission have already found
agreement to deal with the issue of criminal law sanctions in a way
foreseen by the EU rules of procedure, namely in the form of a Framework
Decision. Such a decision is currently in ‘a very early stage of
preparation’ in the Justice and Home Affairs Directorate General of the
Commission.

Consolidated version of the JURI vote (05.12.2003)
http://www.miu-ft.org/~sama/P5_A(2003)0468_EN.pdf

(Contribution by Andreas Dietl, EDRI EU affairs director)